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Don’t get conned by your contract

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BY BILL POWELL
You probably became a freelancer because you like to write or shoot photographs, not because you are savvy at writing contracts. Contracts might seem dull, but understanding the basics is key to understanding who owns your work.
If what you care the most about is keeping the copyright to your own creations, you might be better off without a written contract, since as a freelancer/independent contractor you own the copyright in the absence of a prior written agreement to the contrary. This contrasts with creative work done as an employee, which by copyright law belongs to the employer absent a prior written agreement to the contrary.
If the editor/publisher presents you with a contract, be aware it probably was drafted by an attorney paid to make it favorable to the publisher, not you.
Here are some things to which you should pay special attention.
“Work Made for Hire” or just “Work for Hire.” This means the publisher owns the copyright from the start. It applies to work done by employees on the job. If it is in a freelance contract, make sure the compensation covers equipment, travel expenses and office supplies — the same benefits you would get if you were a staff employee doing the work.
“Assignment” or “Assign,” referring to copyright. Under current law all authors own the copyright to their work as soon as it is created, without the necessity of registration or appending a copyright notice. If you assign the copyright, someone else owns the right to reproduce it and profit from it.
“Exclusive rights.” Often there’s a time period specified for a grant or assignment or license of “exclusive rights.” Often it’s for the duration of the copyright. Sometimes it’s stated to include the right to reproduce the work through any media now known or hereafter devised, or words meaning the same thing. Sometimes they say all this applies “throughout the universe.”
Any of the above, work for hire, assignment of copyright, or any grant of exclusive rights, means that they, and, importantly, NOT YOU, have all rights to reproduce and profit from your work. You can’t even include it in a collection of your work without infringing their rights. They, NOT YOU, have rights to all the profits from movies or TV or T-shirts or any derivative works of any kind.
If a publisher is going to demand terms like these, the pay should be a lot higher than traditional assignments. You should try to modify the terms if it is not. Best, of course, would be to strike out any references to work for hire or assignment of copyright. One thing that several members have had success with is to insert “non-” before “exclusive,” and I’ve seen several contracts offered by publishers that have proposed this arrangement. Basically, if you sort through the language, it often makes any future use by either the author or the publisher a non-infringing use, and leaves open the prospect of either party marketing the work or things derived from it, and keeping all money produced by doing so. That of course is not the best result, but it’s better than being denied any access to your own work.
Freelance contracts, or the email exchanges stating the terms of the agreement, should cover these subjects for the benefit of both the publisher and the author:

  • Deadlines
  • Payment amounts and when payments are due.
  • Which, if any, expenses will be covered.
  • A clear description of the work being undertaken.
  • The approximate number of words to be produced.
  • Whether photographs are to be provided and if so, descriptions of them and what payment is attached to them.
  • The number of re-writes covered by the pay.
  • The rights being sold and retained and the fact that the author guarantees that the submission will not violate the rights of others.

If the word “indemnity” or any version of it appears in anything you are asked to sign, be sure you are not agreeing to protect the publisher and editor from their misdeeds, but only from your own.
If you have a chance to supply the contract, look at the example I’ve supplied on the next page for guidance. You can also email me for a copy of the contract in a word document.
And remember, don’t start with an adversarial attitude. Demonstrate your professionalism and high standards. Keep in mind the definition of “lawsuit” by Ambrose Bierce, the American writer who disappeared while “embedded” with Pancho Villa’s rebels about 100 years ago and about 800 miles west of McAllen, Texas. A lawsuit is “a machine you enter as a pig and leave as a sausage.” ♦
— Bill Powell is OWAA’s legal counsel. He led a workshop on contracts at the conference in McAllen, Texas. Email him at powell@smithlewis.com for the rest of his notes from the presentation
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Freelancer Contract Terms

Publication: _____________________________________________________________
All communications to be through _____________________, email: _________________
Author/Photographer: _____________________________, email: _________________________
Subject of article: _______________________ Length: approx. _________ words
(Scope of article will not be changed without agreement, may require change in price)
Manuscript due date: _____________________
Method of submission: email; text in ___________ format; photos in ____________ format, resolution not less than ________
Description of number and types of photos to be included: _________________________________________
_________________________________________________________________________________
Pricing: $_________ for article; $_________ for photo package; $_________ for cover photo; $________ for any requested sidebar or related short piece not covered in above word count, up to ________ words
Payment in full is due ____ on acceptance [or] ____on publication, but if author has complied with contract and article is not killed within six months after final manuscript delivery, full payment is due then, whether or not accepted or published. If article is killed within the six months after manuscript is submitted, a kill fee of 50% of the total price stated in this contract becomes due then. Publisher receives no rights to article or photos if article is killed or remains unpublished after one year. Payments may be made by electronic deposit or check within 20 days of due date.
Author will do one re-write upon request without additional payment.
The following expenses related to the article will be reimbursed upon submission and approval of receipts, up to a maximum of
$__________: _______________________________________________________________
___________________________________________________________________________.
Rights granted (upon receipt by author of full payment): non-transferrable one-time serial rights and publication on World Wide Web for ___ months. (Copyright retained by author, publisher will run photographs with credit lines specified by author)
Author agrees that materials submitted will be original, not previously published, and will not infringe any copyright or commit defamation or invade anyone’s protected privacy, property, or publicity rights.
Author:
____________________________
____________________________
USPS address:
____________________________
____________________________
Date: ________________________
Above terms agreed to by publisher:
____________________________
____________________________
USPS address:
____________________________
____________________________
Date: ________________________
[Author and publisher should each retain a signed copy of this document.]
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